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Senator MCCLELLAN. I would suggest to you that during the course of the hearing or at any time, if you come to any conclusion different from what you have expressed here, as to any provision of the bill that you think ought to be modified, eliminated, or changed in any way, we certainly would appreciate your giving us your suggestion by letter or by advising us otherwise.
Mr. MUMFORD. Thank you very much.
Senator MCCLELLAN. Mr. Brennan, call the next witness.
Mr. BRENNAN. Mr. Kaminstein and Miss Ringer.
STATEMENT OF ABRAHAM L. KAMINSTEIN, REGISTER OF COPYRIGHTS, ACCOMPANIED BY MISS BARBARA RINGER, ASSISTANT REGISTER
Senator MCCLELLAN. Mr. Kaminstein. Will you identify yourself first, please, sir, for the record?
Mr. KAMINSTEIN. Mr. Chairman, my name is Abraham L. Kaminstein, and I am the Register of Copyrights.
Senator MCCLELLAN. How long have you held that position?
Mr. KAMINSTEIN. Since December of 1960.
To my right is Barbara Ringer, Assistant Register of Copyrights for Examining.
Senator MCCLELLAN. Miss Ringer.
I see you have a prepared statement. Is that a joint statement of the two of you, or do you have separate statements?
Mr. KAMINSTEIN. There is no separate statement. Miss Ringer is here to counsel with me, but not to make a separate statement.
Senator MCCLELLAN. Very well. You have a prepared statement, which you may proceed to read as you desire.
I understood you were the witness that could go into the mechanics of this bill and tell us the reasons for it.
Mr. KAMINSTEIN. I hope so, Mr. Chairman.
Senator MCCLELLAN. Very well.
Mr. KAMINSTEIN. Mr. Chairman, it was 10 years ago this month that the President signed the bill initiating the program for general revision of the copyright law. As one of those who have been closely associated with the program from its beginning I am proud to be able to introduce the bill, the product of a full decade of study and effort. Senator MCCLELLAN. Would you at this point elaborate a little bit, for the record here, upon those who have participated in this study and those who are in a sense the contributing counselors to this bill that we have before us.
Mr. KAMINSTEIN. I would be glad to, Mr. Chairman
Senator MCCLELLAN. I think it is well to let the record show a number of them. This bill is a product of years of study and consultation. Mr. KAMINSTEIN. I have referred to that a little later in my prepared statement, but let me cover it right now.
Senator MCCLELLAN. Well, I am sorry, if you have it in your statement later on, that will be acceptable.
Mr. KAMINSTEIN. I see no reason not to do it at this point, Mr. Chairman.
First and foremost, in addition to Miss Ringer, there have been Mr. Abe A. Goldman, the General Counsel of the Copyright Office, who is
attending the hearings in the other House this morning, and Mr. George Cary, the Deputy Register of Copyrights. All four of us have been very closely associated in the work of preparing and drafting the bill for our Office. In addition, we have had the constant help and assistance of all those who are interested in copyright revision.
The revision program started with the preparation and publication of the studies to which you referred, Mr. Chairman, and which were printed by your committee. These were followed by the Register's report of 1961, which analyzed the issues and made detailed recommendations on them. This document, making our recommendations in 1961, is also referred to as "Copyright Law Revision, Part 1."
This was followed by a series of 12 panel meetings, numerous consultations
Senator MCCLELLAN. What is that? Panel meetings?
The Librarian appointed a panel of consultants, originally some 30 or 35 prominent members of the bar representing most of the various interests interested in copyright revision. After a few years, other people became very interested in attending the panel meetings, and by the end of those panel sessions we had a panel that consisted of more than a hundred persons, representing almost everyone who had any real interest in this subject.
Those discussions and the comments are contained in what are referred to as "Copyright Law Revision, parts 2, 3, and 4," which have been printed by the House Judiciary Committee. They contain the extensive prelegislative history of this bill.
During that time, a draft bill gradually emerged. We submitted specific recommendations and draft sections of a bill to the panel. They were discussed, and those discussions, as I have said, are contained in these pamphlets [indicating].
In 1964, you introduced a revision bill at our request in the 88th Congress for the specific purpose of comment and discussion and, following further revisions, the present bill was introduced in February 1965.
Senator MCCLELLAN. Very well. That will probably give us a springboard-the introduction and background that we need at this point. You may proceed with your statement.
Mr. KAMINSTEIN. I might add that part 6, the supplementary report, shows the changes we have made in our original recommendations in the preliminary draft bill, and in the 1964 bill, to produce the 1965 bill. It sets out our revised recommendations, constituting a great many changes in our original program and in the 1964 bill. Senator MCCLELLAN. Very well.
Mr. KAMINSTEIN. At this point I should also like to thank the committee for its prompt action on Senate Joint Resolution 82, the interim extension bill which, as I understand it, is now on the President's desk, and which would extend the present term of copyrights for an additional 2 years to the end of 1967.
Copyright is a complicated subject and this is a complicated bill. It has to be, and I feel no need to apologize for it on that score. Some of its provisions will require explanation and we will be available throughout the hearings to try to answer any questions of language or
content that may come up. However, I think it would be a mistake to open these hearings with a detailed summary of individual sections. Instead, at this point, I will try to answer rather briefly four general questions:
1. Why does the copyright law need revising?
2. How was this bill developed? (I have already indicated the answer to this question.)
3. What are the major provisions of the bill? 4. What disputes still need to be settled?
THE NEED FOR GENERAL REVISION
To say that the present copyright statute was enacted in 1909 is almost enough of an answer to why a new law is needed. The basic premise of that statute, like all those preceding it, was that the author's principal remuneration would come from the sale of printed copies. This premise has been engulfed and swept away by the 20th-century revolution in communications: theatrical motion pictures, high-fidelity phonograph records and audio tape recordings, radio, jukeboxes, wire communications, television, photocopying equipment, video tape recordings, electronic computers, communications satellites-the list grows endlessly. Just as the first copyright laws were a response to an earlier revolution brought on by the development of the printing press, so must a copyright statute today respond to the challenge of a technology based on instant communication and reproduction of an author's works throughout the world.
There are those, as there always have been, who ask why there should be a copyright law at all. They tend to confuse the monopoly granted by the patent law and the completely different protection afforded under copyright. They argue that authors will write whether they are paid or not: "If they need to make a living, why don't they go out and get a job?"
The basic answer to these arguments is found in our Constitution itself: Congress is given the power "*** To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The basic purpose of copyright protection is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators-its authors, composers, and artists who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright law is the only assurance we have that this creative activity will continue.
The drafters of the 1909 act had these aims in view, but for various reasons the statute as enacted fell considerably short of the goal. There is little point now in detailing the ambiguities, obscurities, omissions, and paradoxes of a statute which, after 56 years, still presents dozens of unanswered questions. Let me observe only that a statute which was hastily drawn to begin with has now become hopelessly antiquated.
DEVELOPMENT OF THE BILL
In the hearings on this bill held before Subcommittee No. 3 of the House Judiciary Committee earlier this year a question was raised as to why, in view of the fast-evolving communications technology, there have not been more frequent revisions of the copyright law. If there is a single answer to this question, I believe it is that there are so many interrelated creator-user interests in the copyright field, and they present such sharp conflicts on individual issues, that the consensus necessary for any general revision is extremely difficult to achieve. Examples of this difficulty are found throughout the concentrated efforts to revise the 1909 act which went on continuously between 1924 and 1940 and which all ended in failure and futility. Realizing fully what copyright law revision is up against, Arthur Fisher, my predecessor as Register of Copyrights, planned a program that would be based on a thorough knowledge of all the issues and a painstaking effort to resolve as many disputes as possible before a bill reached the stage of congressional hearings. It took us 10 years, but the program he planned has been carried out to the best of our ability.
The revision program started with the preparation and publication of 35 studies of the principal issues in revision, 34 of them printed by this committee. These were followed by the Register's Report on General Revision of 1961, which analyzed these issues and made detailed recommendations concerning them. Then followed a series of 12 panel meetings, numerous consultations, and a large volume of correspondence, with specialists and interested parties, during which a draft bill gradually emerged. In 1964, a revision bill was introduced in the 88th Congress for the purpose of comment and discussion, and following further revisions the present bill was introduced in February 1965. In May of this year the Copyright Office issued the Register's Supplementary Report on General Revision, which explains in some detail the development, meaning, and thinking behind individual provisions of the bill. The report, the supplementary report, transcripts of the meetings, and comments have been printed by the House Committee on the Judiciary.
The bill as it has emerged is the product of intensive and extensive critical scrutiny over a considerable period of time. On the whole I believe it is technically sound and that, although improvements can still be made in language and structure, in general it is as clear and concise as the inherently complex subject matter permits. On matters of substance I regard the bill as a genuine improvement over the present law, and one of its strengths is that it is neither an "author's bill" nor a "users' bill." A number of its provisions represent carefully worked-out compromises which, while not especially welcome to either side on a particular issue, have proved a satisfactory way of balancing the interests. As a result, the bill has received gratifyingly widespread and strong support.
I hasten to add, of course, that not all differences have been resolved. Several serious and important issues remain unsettled, and they are certain to be hotly debated as these hearings proceed. But in listening and evaluating the arguments on both sides I urge you to keep two vitally important points in mind:
First, none of these issues is irreconcilable. Our experience over the past several years has shown that patient exploration of alternatives can disclose a solution to even the most sharply drawn dispute. The hearings before Subcommittee No. 3 of the House Judiciary Committee have already pointed the way to possible compromises on
Second, none of these issues goes to the heart of revision. So far, at least, the opposition to the bill has been directed to particular provisions rather than to the basic idea of revision or to the bill as a whole. This does not mean that the issues in dispute can be avoided, but it does permit them to be considered individually.
PRINCIPAL PROVISIONS OF THE BILL
Summarizing its provisions very generally, the bill would expand the subject matter of copyright to include, not only all categories of works now copyrightable, but also "pantomimes and choreographic works" and "sound recordings." The prohibition against copyright in Government publications would be retained, but the provisions on the protection of foreign works would be liberalized to some extent.
Some of the principal disputes over the bill derive from the provisions setting forth the exclusive rights of the copyright owner. The general approach has been to mark out the perimeter of copyright in broad terms, and then to define the scope of copyright and specify its limitations in particular situations and for particular kinds of works. The important doctrine of "fair use" is specifically mentioned as a limitation on the copyright owner's exclusive rights, but without attempt at definition.
The bill would drop the present "for profit" limitation on certain performing rights, but would substitute specific limitations for classroom activities, educational broadcasting intended for instructional use in schools, performances during religious services, and certain performances for educational, religious, or charitable purposes. There is no exemption for transmission by a community antenna service under the bill, but certain other secondary uses of broadcasts would be freed from the copyright owner's control.
A new and controversial provision would permit a broadcasting organization to make "ephemeral recordings" for use in its own transmissions under certain conditions. The compulsory licensing provisions for the making of sound recordings would be liberalized, and the maximum rate under the statute would be raised from 2 cents to 3 cents. The jukebox exemption would be removed, and the exclusive rights accorded to sound recordings, while including the right to prohibit unauthorized duplication, would not include rights of public performance.
Perhaps the most significant and far-reaching provisions of the entire bill are those dealing with the term of copyright. Instead of the present dual system of protection of works under the common law before they are published and under the Federal statute after publication, the bill would establish a single system of statutory protection for all works, whether published or unpublished. And instead of the present term of 28 years from first publication, renewable for a second period of 28 years, the bill would provide a basic term of the author's life plus 50 years. These changes, which we believe are a funda